Sunday, June 12, 2011

Nathalie Morin To Appear in Saudi Court Today to Set Trial Date for Attempted Child Abduction: Legalities National and International

Cette photo de Nathalie Morin et de deux de ses trois enfants a été prise par sa mère Johanne Durocher, lors de sa dernière visite, en juillet. Photo: La Presse [July 2009 photo of Nathalie Morin and 2 of her children, taken by her mother during a visit to Saudi Arabia]

Sometime today, June 12, Nathalie Morin will appear in a Saudi court in Dammam, in order to set a trial date on child abduction charges, following incidents which occurred a few days ago. On June 6, Nathalie Morin was discovered leaving her home with her children. She reportedly was attempting to abduct them out of Saudi Arabia and eventually to Canada with the aid of 2 Saudi feminist activists, Wajeha Al-Huwaider, and Fawzia Layouni. Nathalie's mother, and the 2 activists claim they were only helping Nathalie to get food and provisions for her and the children after her husband, Said Al-Shahrani, left the family locked in their home for days while he attended a cousin's wedding in his city of origin, Jubail. All the adults involved are subject to Saudi law. (See previous post)

As regards the children, there are 2 sets of laws that govern this case. The first, and the one that has predominated all along, is Saudi family law, or the moudwana, which, as in other Muslim countries, is based on Sharia law. The second is the Hague Convention on the International Rights of the Child. According to Saudi family law, the children are in the custody of the father. When the children are very young, the mother may be allowed to raise them, but custody, that is, legal guardianship and decision-making about the children, remains with the father. Sometimes, in preference to the mother being allowed to raise them, very young children would be raised by the paternal grandmother. This is a decision for the father to make.

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When there is an issue of taking children across international borders, the Hague Convention of the Civil Aspects of International Child Abduction (enforced since 1983) predominates. This is primarily true where both countries have signed and ratified the Hague Abduction Convention, but also is invoked when they have not. Muslim countries have not ratified the Convention, and where they have signed, have only done so with the proviso that the aspects contravening Sharia family law do not apply.

This is one of the reasons that certain parental child abduction cases--involving usually a father taking the children from a Western country to a Muslim one--make headlines, whereas they are in the minority of parental child abduction cases. Most often in these cases there has been a marital breakdown, divorce, and the Western court favoured the mother for custody, as most often happens generally in custody cases in the West. Where joint custody is awarded, all major decisions about the children, even including schooling for example, require the consent of both parents.

For most Canadians, the Hague Abduction Convention only comes in to play when they apply for a passport for their child. Such a passport (children are no longer on a parental passport) requires legal documentation of both parents, and of custody agreements where there has been legal separation or divorce. Where one parent has relinquished all rights, this too must be legally documented.

Some Canadian parents live through the agony of one parent abducting the child, usually not returning after a legal visit. Sometimes, as in a recent case in the news, the parent has taken the child to a different province. Often, the US is the international border crossed, as in the famous case of Canadian Olympian Myriam Bédard, who took her daughter across the Canada-US border to live with her and her new love interest. As Canada and the US are both signatories to the Hague Abduction Convention, Bédard was arrested on an international warrant, and she and her daughter returned to Quebec. Bédard was convicted of violating her child custody agreement, and sentenced to a conditional discharge and 2 years probation.

The essence of the Hague Abduction Convention is that the child is to be immediately returned to the country of usual residence, and the legal norms of the custody agreement already in place are to be respected until a court in the home country decides otherwise. The first step is a return to the status quo. After that, the family courts in the home country decide what new provisions should apply, and the criminal courts decide on the abduction charges.

In the case of Nathalie Morin, even though Canada enforces the Hague Abduction Convention, Saudi Arabia is not a signatory. Even if both countries were signatories, she and the children habitually reside in Saudi Arabia--so the status quo would apply. That is, the children would be returned to, or remain in, Saudi Arabia and Saudi family law would apply. Her husband would have custody of the children even after divorce, and would determine what contact, if any, she would have with them. In the case of a divorce, Morin would most likely not have the legal right to remain in Saudi Arabia, as she would no longer have a spousal iqama or visa.

As Saudi Arabia is not a signatory to the Hague Abduction Convention, and Morin is in Saudi Arabia, its family law applies in this case, and its criminal laws apply regarding child abduction. This means that the children's guardian continues to be their father. Because of the Saudi interpretation of the mahrem system, Nathalie's husband, Said Al-Shahrani, continues to be her guardian as well. If they were to divorce, she would not have custody of the children, and not have the legal right to live in the country or visit them--unless her then former husband agreed.

Johanne Durocher, la mère de Nathalie Morin, Québécoise retenue contre son gré en Arabie Saoudite avec ses trois enfants, déplore l'analyse des autorités consulaires canadiennes qui considèrent la situation de sa fille comme une «question familiale du domaine privé». Photo: Martin Chamberland, Archives La Presse
[2009-Johanne Durocher, the mother of Nathalie Morin, a Quebecker kept against her will in Saudi Arabia with her 3 children, deplores the analysis made by Canadian consular officials, who consider her daughter's situation as a "family question in the private domain".]


Despite the efforts of Nathalie's mother, Johanne Durocher, there is little that the Canadian government can do in this case, beyond mediation attempts already made by the Canadian Embassy, and moral support for a Canadian in legal difficulty abroad. Even the question of the husband's alleged abuses has not been leverage, either in law or in popular support. Part of the reason is that the abuse hasn't been proven, and there is suspicion that it is exaggerated to achieve the aim of bringing the children and Nathalie to Canada. Another part of the reason is that the abuse in itself would not change custody or residency laws.

Since the events of June 6, and particularly due to the efforts of Nathalie's mother, Johanne Durocher, there is increasing news coverage in the West of this latest turn in Nathalie Morin's case. The article below is one example. Note that Johanne Durocher refers to the cost of bringing Nathalie and the 3 children to Canada being $100,000 each. She is alluding to paid professional kidnappers, often former military men, who undertake to go to the country where the children are and abduct them, or re-abduct them when the children have been removed from their home country to another.

These professional services are expensive, rarely successful, and illegal. Moreover, child experts agree that both abduction and re-abduction are traumatizing to the children. The usual advice is to follow the best interests of the child, which is to leave them where they are, and avoid further psychological trauma. The psychologically traumatized parent must work on a healing process.

Most often, there is the hope that once the child is legally an adult, they will be free to seek out their parent and are likely to do so. Here, the Saudi interpretation of the mahrem system comes into play again. Whereas in other Muslim majority countries both sons and daughters become legal adults, often at the age of 18, in Saudi Arabia daughters do not become legal adults, in the sense that they are always required to have a legal male guardian--father, husband, brother, adult son, other responsible male family member--whose consent would be required to leave the country or to meet with the biological mother.

As stated in the previous post, sorting the details of this case is particularly difficult due to a number of confounds. However, for sure, Nathalie Morin, and her children with her husband Said Al-Shahrani, are subject to Saudi law. Hopefully there will be the happiest resolution possible for all family members, and particularly its youngest, most vulnerable ones.


‘Terrified’ Quebec mom faces Saudi court
Published On Thu Jun 09 2011

Jim Wilkes
Staff Reporter

Nathalie Morin is a long way from home with the odds stacked against her.

The Quebec woman’s efforts to bring her family to Canada may have taken a drastic step backwards after she was detained by police in Saudi Arabia this week and told to face a court hearing on Sunday, accused of trying to kidnap her three children.

Morin, 26, has been stuck in Dammam, about 500 kilometres from the Saudi capital of Riyadh, since 2006, when she last visited Canada alone. Under Saudi law, she is not allowed to leave home with her children without her husband’s permission.

Johanne Durocher, Morin’s mother, said in an interview from Montreal Thursday that her daughter was detained by police after trying to take her children shopping while her husband was out of town.

She said Morin is frustrated and “terrified” to face this weekend’s tribunal. But she said communications problems have made it difficult to learn specific details of her daughter‘s case.

“My girl, she is very afraid,” Durocher told the Star. “She is terrified.”

She said Morin had already been left in her apartment with her children for two days while her husband, Saeed Al Shahrani, travelled to his hometown for a week-long visit.

On Monday, she said the family was running low on food and water, so Durocher contacted a Saudi journalist and feminist, Wajeha Al Huwaider, to take her shopping.

As they were leaving, she said Shahrani was waiting with police outside.

Durocher claims Shahrani had bugged the apartment and alerted police when she attempted to leave about 8:30 p.m. with her children, aged 8, 4 and 2.

Morin was sent back to the apartment, but Huwaider was questioned for two hours by police, she explained.

Durocher said police returned about 11 p.m. “and took my girl to the police station.” Morin was returned home two hours later, told she must face a court on Sunday to set a date for a trial.

If found guilty of trying to kidnap her children, Morin could face any number of penalties, said Ali Alyami, founder and executive director of Washington’s Center for Democracy and Human Rights in Saudi Arabia.

“There is no codified rule of law in Saudi Arabia,” he explained. “Shariah law is subject to interpretation by a judge.

Alyami said the case smacks of “entrapment.”

“One way to get rid of her and keep the children is by accusing her of trying to kidnap them,” he said. “In Saudi Arabia, children are property, just like the wife. They are the property of the father.”

In a video from earlier this year, Morin said she and her children are confined to an apartment without a key of her own to come and go. She said they have been subjected to “physical abuse and psychological abuse.”

In 2009, Deepak Obhrai, parliamentary secretary to then-Foreign Affairs Minister Lawrence Cannon, said Morin’s abuse allegations had been probed by the Saudi Arabia Human Rights Commission and “found not to be credible.”

Durocher said Thursday that her daughter has tried to sponsor Shahrani to immigrate to Canada, but a visa has not been approved. She said all three children already hold Canadian passports.

Durocher said that if she could afford it, she would have already arranged for her daughter to escape with the children. But she said it would cost $100,000 each to get them out.

John Babcock, spokesperson for Minister of State Diane Ablonczy, said in an email from Ottawa Thursday that Canada’s involvement in the matter is limited by Saudi Arabia’s laws.

“This is a very complex family dispute with no easy solution,” he wrote. “This case has been raised by the former minister of foreign affairs and the current government House leader in their meetings with Saudi officials.

“We are bound by both Saudi law and the Hague Convention on International Child Abduction, under which the children cannot leave without the consent of both parents.

“Our government has twice facilitated Ms. Morin’s return to Canada, and we stand ready to facilitate her return again, but custody of the children must be resolved before we can facilitate their departure from Saudi Arabia.”

Shahrani disputes his wife claims.

“How can my wife be the victim of any torture or detention when she is currently learning Arabic at a specialized society and speaks with her mother on the phone daily?” he told the Saudi daily Al-Watan last month.

“Whether or not I allow my children to leave Saudi Arabia is a matter which concerns both myself and my wife only,” he said. “Besides, I am entitled to keep my children in my custody according to Shariah, and I have not prevented my wife from staying with them.”

**********

Your comments, thoughts, impressions?

Related Post:
Saudi Activists Wajeha Al-Huwaider and Fawzia Layouni Detained for Attempting to Help Canadian Nathalie Morin Flee Saudi Arabia with her 3 Children

8 comments:

Salma's Visual Notes said...

Oh my, Chiara, my heart almost stopped. I am so sad to hear this news. Those poor children...how will they ever have a normal life.

Thank you for sharing.

Tossing Pebbles in the Stream said...

We need to understand the laws of another country, particularly one that is no a liberal democracy, before we go to live there.

We had a family friend who met a Sudanese man in France while at the Sorbonne. He behaved like the French and enjoyed all the social conventions of the French culture. They married and returned to the Sudan, where she, a liberated woman and well educated, found herself confined in conditions similar to those in Saudi Arabia.
In the end, she escaped and fled from Sudan.

oby said...

Will the fact that the husband locked her and the children in the house without food or money or any way to obtain these things be taken into consideration? Was she actually trying to take the children to Canada? (I am sure that is the case) but the husbands cruelty MUST have some bearing in this. Were they expected to starve? And if I read the precious article correctly Natalie was caught by her husband ENTERING the house with a key her mom got for her. If she was running would she have returned or left with the clothes on her back and not chanced a return?

Anonymous said...

Only in KSA, Oby. It is a 'special' country.

Majed said...

First of all in my there is no question that Sharia law is wonderful law, which is based on (do not harm yourself and cause harm to others).

I sympathize with Morin as I would with my sister,but her being a big dummy and obviously very innocent girl does help her, most woman know how to run their husbands, she didn't, she should have swum with the stream of her husband and used the country 's laws and regulation to her advantage until she sees a suitable exit, as she has been legally married to a Saudi man for more than five years and had children with him,then she is entitled to get the Saudi citizenship,most often she can have Saudi citizenship even if she was divorced from a Saudi man,but has Saudi children, Saudi law is very much in favor of women in many situations, but associating with women like Al-Huwaider does not do anyone any good,only makes an sticky mud even stickier.

Husband going to somewhere few days is not uncommon,and if a woman stayed home with her children alone, no big deal,the children are his children too,I guess no father will leave his family without enough supplies that is very ridiculous accusation, she was looked up in the house yet she was caught trying to go out for shopping does not make a good case too, and Mom being apparently too involved is very bad,a wise Mom always gives her daughter little space,with a little time muddy waters and dusty air always get cleared eventually.

If a simple man like me would give her advice, I would tell her calm down stop cluttering around it will make matters worse, a word from her husband she can go home as if there was nothing,it is better to reconcile with her husband at least for the time being,and at once disavow Al-Huwaider then wish her mother a farewell, and tell her she will do it her way now, Morin is a mother first thing she should understand is that, her children are the only losers and victims,no matter they lose a mother or father,this is a battle in which there is no winner, whatever sacrifice she will make for them will make her priceless in her own eyes and the eyes of children.

Wendy said...

I beg to differ, Majed. Perhaps in ME countries women who 'sacrifice' themselves for the children are 'precious' but in reality it is very harmful for children to see their mothers abused and treated badly.
Secondly, this thing in KSA about locking people inside houses is immoral. What if there was a fire??!!!! I saw that in KSA quite often and I was horrified to say the least. I was in a position of being in a house with no key to get out until I told my husband and he demanded I have a key to exit the house. Shariah law is wonderful ... if you are a man.

Majed said...

Wendy,

Well, that was exactly my point there is no one that crazy to lock up his flesh and blood neglecting all the emergencies and hazards involved,sure she had key with her.

The first option I gave her was wisely a planned scape:
(most woman know how to run their husbands, she didn't, she should have swum with the stream of her husband and used the country 's laws and regulation to her advantage until she sees a suitable exit)

The second option was an advice which is to make sacrifices for children, and this is the one I would take before I would ask my wife to make, it is not necessary that only woman should make sacrifice for children, because I was also a reason why they came to this world , what happens to them in it, before they grow up, happens to them because of choices and mistakes I make or had made Morin made the wrong choice when she decided to explore the unknown, and she is morally obliged to wait until they grow up.

Actually women in the Arab world are not so fond of making sacrifices I have never seen as many divorce cases anywhere as I saw in the Arab countries.

Actually Sacrifice is the middle name of the Indian woman, no mother like an Indian mother that is why I worship my mother that is why I married an Indian woman, my father is also is a very good man my mother have lived 40 years with him, he never even for once shout at her he always used to say i took her away from her country away from her family I have to be everything and everyone to her.

Chiara said...

Thank you all for your comments. I will post an update shortly.

Salma-it is very sad, and the faster this situation comes to a more harmonious resolution the better.

Tossing Pebbles-Anyone returning to their own country has to re-adapt to that country, and certain norms are more rigidly applied to a native of the country than to immigrants. These are indeed realities to bear in mind. There do seem to be extra issues in this case, that are somewhat murky and conflicting.

Oby-as I understand it, Nathalie was caught leaving the house, and the key provided by her mother is supposedly not known to her husband. A Canadian Embassy investigation into the allegations of abuse has determined that there is no abuse. In my experience, instances of abusive behaviour are not considered abuse unless there is a consistent pattern and it is relatively pervasive.

Anonymous-yes there are aspects of this that are "Saudi bound" ie determined by Saudi culture and law. However the overall scenario is relatively common in terms of conflicts around mother-in-law vs son-in-law and daughter caught in between; the limitations on options when one has a number of small children; and, the difficulties of living far from family supports. Thanks for highlighting that some aspects are Saudi specific.

Majed-thanks for both your comments and perspectives. There are many who would argue that daily phone calls complaining to your mother about your spouse is guaranteed to keep problems in a marriage active, rather than allowing for resolution. If there is serious abuse, however, or extreme isolation this can be a lifeline. One does get the sense here that there is an active maintenance of the worst parts of the marriage, for whatever reason. Mother's sacrifices are usually more in the realm of doing without for the sake of the children. Where there is serious abuse, staying in a marriage for the sake of the kids, beyond the time necessary to get the resources to leave doesn't usually work out so well. Some mothers sacrifice by starting over in low level jobs to remove their kids from an abusive situation. In this situation, the actual circumstances are very cloudy.

Wendy-The idea of locking anyone in the house is disturbing for safety reasons at the very least. In Morocco it is relatively common to lock child maids in the house while the family is away during the day. We stayed in one home where it was the normal practice, and also to punish the maid if she answered the phone. We were there when she was locked in for the day with nothing really to eat for lunch (the main meal of the day). Of course we bought groceries and had her join us for lunch. It left me with lingering concerns about how our hosts treated her when we weren't around.

Thanks again to all for your comments. Each contributes an enriching perspective!

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